Retirement plan benefits are frequently divided between husband and wife as part of divorce. The court order dividing a retirement plan is called a Qualified Domestic Relations Order or QDRO for short (QDRO is pronounced “quad-row”).

There are two basic types of QDROs – a separate interest QDRO and a stream of payment QDRO. The most common type is a separate interest QDRO.

A Separate Interest QDRO actually divides the employee’s (plan participant’s) interest in the retirement plan. A portion, or separate interest, is awarded to the spouse (called the alternate payee) and transferred into the spouse’s name. The separate interest QDRO results in a portion of the plan participant’s benefit being removed from the employee and assigned to the spouse. The advantage of a separate interest QDRO is that the alternate payee spouse can choose when to start receiving plan benefits and how they will be paid.

By way of contrast, a Stream of Payment QDRO is much less flexible for the non-employee spouse. This form of QDRO says that “when or if” the employee starts receiving pension payments, a portion of each payment will be paid to the former spouse by the plan instead of 100% being paid to the plan participant.

Either type of QDRO must be signed by the judge as a court order. The QDRO will be reviewed by the retirement plan administrator to make certain that the QDRO meets the requirements of the law. The plan administrator’s review also confirms that the language of the QDRO is consistent with the options available under the specific retirement plan. Most large employers have sample QDROs available from the plan administrator.

An IRA can be divided as part of the divorce without a QDRO. The receiving spouse’s portion can be rolled over into a pre-existing IRA or into a newly established IRA account. This rollover of all (or part) of an IRA requires less attorney work than a QDRO, but there are some advantages to dividing a qualified retirement plan instead of an IRA when you have a choice.

Distributions from both IRAs and Qualified Plans before age 59½ are called early withdrawals. Such early withdrawals are usually subject to a 10 percent income tax penalty. However, such a distribution under the terms of a QDRO to an alternate payee can be made without being subject to the penalty tax on early distributions. Consult with your tax advisor if you need to take a retirement plan distribution to make certain that you meet all of the requirements of I.R.C. § 72(t)(2)(C). If the QDRO distribution is rolled directly into an IRA, and the alternate payee then withdraws funds from that IRA before age 59½, the IRA distributions would be subject to the penalty tax.

Most often, if permitted by the retirement plan, keeping a separate account within the plan would be preferable for the payee spouse to rolling the spousal share over into an IRA. Certainly this is the case where the receiving spouse anticipates an early withdrawal. Many divorcing parties have both retirement accounts and IRAs. In dividing marital assets, such considerations can help determine whether the receiving spouse would rather receive a portion of a retirement plan under a QDRO or an award of IRA assets as part of the equitable division.

© Karen S. Hindson, Hindson & Melton LLC  February 19, 2014

ALSO SEE:

• PROPERTY DIVISION GEORGIA DIVORCE
• ATTORNEYS FEES FOR GEORGIA DIVORCE
• PARENTING PLAN REQUIRED FOR ALL GEORGIA CUSTODY CASES

What exactly is marital property?

Marital Property is property the couple acquired together during the marriage.  It is subject to equitable division if it is acquired as a direct result of labor and investments of the parties during the marriage.  Examples may include earned wages, a home or a car.  This is true even when one spouse earned the income and the other spouse was a homemaker.

A judge usually looks at the marital property (including real property such as the marital home, and personal property such as automobiles and furniture), and decides on a fair distribution.

How does the court divide up marital property?

Factors which may be considered include each party’s contribution to the acquisition and maintenance of the property, the purpose and intent of the parties regarding ownership, the earning power of each spouse, and how long the marriage lasted.

The conduct of the parties both during the marriage and with reference to the cause of the divorce is relevant and admissible in court.  Adultery on the part of a spouse will not preclude his or her claim for equitable distribution of marital property.  Property division is different from alimony – an adulterous spouse cannot obtain alimony.

What is non-marital property?

Non-marital property not subject to division generally includes property a spouse brought into the marriage as well as gifts and inheritances given to one spouse in particular. A property interest brought to the marriage by one of the marital partners is a non-marital asset.  It is not subject to equitable division since it was not generated by the marriage.  This is also called Separate Property.

Property acquired during the marriage by either party by gift or inheritance remains the separate property of the party that acquired it unless it is converted into a marital asset by the actions of the recipient spouse.  It is generally not subject to equitable division unless its value was caused by efforts of the other party during the marriage.

Non-marital property that has been mixed together or comingled with marital property presents a more complex issue.  An example might be an inheritance that is put into a joint bank account.   If you want to protect your inherited or gifted separate property from a future equitable division claim by your spouse, you should keep it in a separate account that is only in your name.

Any assets acquired during the marriage belonging to a child of the marriage would not be subject to equitable distribution.

Your attorney can help you determine what is marital property and what is separate property, and help facilitate equitable distribution.

Debt division in Georgia divorce

As part of the divorce, you should ideally pay off as much debt as possible. Joint credit card accounts should be closed and the debt divided equitably considering all the circumstances.  “Equitable” division is usually not “equal” division.  Sometimes, parties open new individual accounts in each spouse’s name and transfer the applicable portion of the joint debt onto an individual credit card.  Thus, each spouse is responsible for only their agreed-upon portion of the debt and is protected from the other spouse defaulting.  If joint debts are not paid off prior to divorce, an agreement may assign responsibility for all or a portion of a joint debt to a spouse, yet that spouse could default on the payment and damage the credit of the spouse who has made payments in good faith.  Although the defaulting spouse could be held in contempt of court for violating the divorce settlement agreement, the innocent spouse remains legally responsible for any joint debts as far as the creditor is concerned.

What about dividing retirement benefits if one spouse hasn’t contributed?

In distributing retirement benefits, the court will look at contributions to the marriage of the spouse who has not earned any benefits, and the number of years of the marriage in which contributions were made.  It may also look at the degree to which there has been reliance on the expectation of future benefits and other variables.

Military retirement pay is subject to equitable distribution.

How is equitable distribution of the marital home handled?

Generally, if the couple has children living in the home, the court favors giving the house to the spouse who will have primary custody of the children. The other spouse will usually receive a larger award of other assets to make up the difference.  If the parties cannot afford to keep the house, it may be sold and the proceeds divided equitably.

If there are no children involved, the court has a more difficult decision to make about who keeps the house.

When the marital residence was purchased by one party prior to the marriage, the other party would be entitled to an equitable share of the net increase in the equity in the marital home attributable to the marriage.

If one partner purchased the house with separate funds and there are no children, then they usually can keep it and require the other party to vacate.

What happens to the marital home while the divorce is pending?

Neither party has the right to ask the other to leave without a court order, but one partner can always request it.

Since spouses typically don’t have the right to prevent the other from living in the home without a court order, it is usually unwise for one to change the locks on the house during the divorce.  Exceptions might be cases of domestic violence, where a family violence protective order is in place, or once a temporary order awards sole possession of the house to one party on a temporary basis.

Personal Property and THE RING

People frequently ask who gets the wedding or engagement ring.  The ring is considered a gift.  To constitute a valid gift, a donor must intend to make a gift, the donee must accept the gift, and there must be a delivery of the gift.  The person claiming the gift has the burden to prove all three essential elements.  If the gift criteria have been met, the spouse has the right to keep the ring.

Gifts between spouses of marital property can be subject to equitable division.  If there is conflict as to whether a gift from parents is a gift to one spouse or both, the court will have to make a decision about that.  A gift to a marital couple will become marital property absent any evidence of a contrary intent by the donor.

In the End

The last date on which assets may be acquired as marital assets is the date of the final decree of divorce.  Anything not disposed of in the final divorce decree will likely be considered jointly owned by the husband and wife.  The party with possession of personal property not addressed in a final decree usually has the superior claim to the property, absent fraud.

Caution:  Applying legal principles of property division in Georgia divorce can be complex.  The information in this article is intended to prompt your thoughts and questions about your individual situation.  You should discuss property division in your Georgia divorce with your attorney.  Hindson & Melton LLC serves divorce clients in North metro Atlanta counties and communities, including Dunwoody, Sandy Springs, Brookhaven, Alpharetta, Marietta, Roswell, and surrounding communities.

© Lauri Bracey, Paralegal, and Karen Hindson of Hindson & Melton LLC   May 9, 2013